Safe Injection Practices and Criminalization of Reuse

The AANA has long been a proponent of safe injection practices in order to minimize the transmission of bloodborne pathogens and other infectious agents, and is a founding member of the Safe Injection Practices Coalition (SPIC) which is led by the Centers for Disease Control and Prevention (CDC). Despite attempts to educate healthcare professionals, including CRNAs, regarding the risks to patients posed by unsafe injection practices, infectious outbreaks continue to occur. “Injection safety and other basic infection control practices are central to patient safety. These unfortunate events serve as a reminder of the serious consequences of failure to maintain strict adherence to safe injection practices during patient care,” says Dr. Joseph Perz from the CDC. As a result of continued outbreaks and patient notification events, state legislatures are beginning to introduce language in legislation that criminalizes the inappropriate reuse of medical devices and equipment.

In March 2010, Michigan Senate Bill 528 became law, stating that “[e]xcept as otherwise provided in this section, a health care provider shall not knowingly reuse, recycle, refurbish for reuse, or provide for reuse a single-use device.” The law also states that a “health care provider that violates this section is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $50,000.00, or both,” making the reuse of single-use devices a felony crime. This information was included in the AANA State Update published at that time, as well as the AANA’s state tracking reports.

If you are a CRNA practicing in Michigan, the seriousness of this law cannot be overemphasized: The reuse of a single-use device is considered a felony, and a felony is considered a criminal act. As such, you may not have malpractice insurance coverage available to you if you reuse a single-use device. Whether your employer provides your professional liability insurance coverage or you purchase it for yourself, no protection whatsoever may be available to you if you are found to have reused a single-use device. It is usual for malpractice insurance policies to have exclusions and these may vary from one insurer to another; however, all insurance policies exclude coverage for criminal acts committed by a policyholder. The rationale here is that it would not be in the public’s best interest if insurance companies provided coverage for individuals who commit crimes. This exclusion eliminates coverage for any and all damages (including both bodily injury and property damage) caused by the policyholder’s criminal act. So if you are found to reuse a single-use device in Michigan, you may have to pay all of your own legal expenses, and any fees, penalties or judgments made against you, out of your own pocket.

Michigan CRNAs should also be aware that if they reuse it could put any patients who are impacted at a serious disadvantage. When a policyholder loses malpractice coverage due a criminal act, the patient who is affected loses the ability to seek and obtain damages from the insurer due to the healthcare professional’s actions. While patients have a right to pursue the personal assets of healthcare professionals to satisfy potential malpractice judgments, discovery of assets is often a lengthy and burdensome process that does not always lead to financial recovery.

While the AANA is not aware of other states having passed laws explicitly criminalizing the reuse of single-use devices, criminal prosecutions for malpractice can potentially occur in any state when the actions of a healthcare professional deviate sufficiently from an applicable standard of care under a charge of criminal negligence, manslaughter, or murder. Even if a state does not currently have legislation that makes reuse of a single-use device a criminal act, CRNAs are still at risk of being charged with criminal negligence, manslaughter or potentially murder for reusing items labeled as single-use.

For questions regarding malpractice coverage please contact AANA Insurance Services at 800-343-1368 or insuranceinfo@aana.com; for questions concerning state legislation please contact the AANA State Government Affairs Division at 847-655-1130 or SGA@aana.com; and for questions concerning safe injection practices please contact the AANA Professional Practice Division at 847-655-8870 or practice@aana.com.